Citation Nr: 0419233
Decision Date: 07/16/04 Archive Date: 07/27/04
DOCKET NO. 00-10 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to a compensable evaluation for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: William T. Canavan, Esq.,
Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Darryl M. Springer, Law Clerk
INTRODUCTION
The appellant served on active duty from November 1959 to
April 1972 and from March 1979 to September 1985. He also had
some additional active duty for training time.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Baltimore, Maryland Regional Office
(RO), which denied a compensable evaluation for service-
connected bilateral hearing loss.
Pursuant to the appellant's request, in May 2001, a hearing
at the Board was held before the undersigned who is a
Veterans Law Judge and will render the final determination in
this claim and who was designated by the Chairman of the
Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102
(West 2002). A transcript of the hearing is of record.
This case was remanded in July 2001 for further development.
The case has been returned to the Board.
A Board decision of May 2002 denied entitlement to a
compensable evaluation for bilateral hearing loss.
A November 2003 decision of the United States Court of
Appeals for Veterans Claims (Court) vacated and remanded the
May 2002 decision of the Board, which failed to grant a
compensable rating for bilateral hearing loss. The Court
determined that the VA did not properly satisfy its duty to
notify under the Veterans Claims Assistance Act (VCAA), as
codified in 38 U.S.C.A § 5103(a).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law during
the time the claim was undergoing review. See 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement
the provisions of the law, VA promulgated regulations
published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003)). The
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition, they define
the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c). In Quartuccio v. Principi, 16 Vet. App.
183 (2002), the United States Court of Appeals for Veterans
Claims (Court) provided guidance regarding the notice
requirements mandated by the VCAA.
In this case, it was essentially held in the Court order that
the appellant was not properly notified of the allocation of
responsibility of the parties to identify and obtain
additional evidence in order to substantiate a claim for an
increased evaluation. The Court further stated that the
Board did not adequately consider "all . . . applicable
provisions of law" and did not provide an adequate statement
of reasons and bases for its decision. The Board decision
was vacated for such notice to be provided.
Additionally, in a decision on May 1, 2003, the United States
Court of Appeals for the Federal Circuit invalidated 38
C.F.R. § 19.9(a)(2) and (a)(2)(ii). See Disabled American
Veterans et al. v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2) was invalid because in conjunction with
38 C.F.R. § 20.1304, it allowed the Board to consider
additional evidence without having to remand the case to the
agency of original jurisdiction (AOJ) for initial
consideration and without having to obtain the appellant's
waiver, which was contrary to 38 U.S.C.A § 7104. 38 C.F.R. §
19.9(a)(2)(ii) was held invalid in that it provided 30 days
to respond to notice, which was contrary to 38 U.S.C.A. §
5103(b), which provides a claimant one year to submit
evidence.
Here, the RO has provided the appellant notice, to include of
the VCAA, however, it has been held that the appellant has
not been advised with notice of the allocation of the burdens
for obtaining evidence necessary to his increased evaluation
claim. This is a violation of Quartuccio, supra. The Board
may not proceed with appellate review without correcting this
procedural deficiency. Under Disabled American Veterans,
supra, the Board may not provide the notice on its own.
Furthermore, the appellant contends that his hearing loss is
more severe than currently evaluated and he has submitted VA
reports from March 1999 to September 2003, and private
audiological examinations from May 2004 to June 2004, to
substantiate his claim for a compensable evaluation for
bilateral hearing loss. Therefore, based on the facts in
this case and the conflicting VA and private medical opinions
regarding the appellant's bilateral hearing loss, a current
VA audiological examination should be provided, since it is
unclear as to the current symptomatology related to the
service-connected disability and severity of the
symptomatology.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should send a letter to the
appellant and his representative
informing them of the pertinent
provisions of the VCAA based on a
claim for an increased evaluation.
The RO should ensure that the
appellant has been properly advised of
(a) the information and evidence not
of record that is necessary to
substantiate his claim, (b) the
information and evidence that VA will
seek to provide, (c) the information
and evidence that the appellant is
expected to provide, and (d) any
evidence in the appellant's possession
that pertains to the claim that he is
expected to provide. The notice
provided should also be in accord with
the aforementioned Court cases, 38
U.S.C.A. §§ 5102, 5103, 5103A, (West
2002), and any other applicable legal
precedent. See Quartuccio; Disabled
American Veterans, supra.
2. Thereafter, the appellant should be
afforded VA ear and audiometric
examinations in order to determine the
current severity of his service-
connected bilateral hearing loss. All
indicated testing should be performed.
The claims folder must be made
available to the examiners prior to
the examinations so that pertinent
aspects of the appellant's medical
history may be reviewed. The
examiners should specifically state
whether the claims folder was
reviewed.
3. After completion of the requested
development, the RO should review the
appellant's claim on the basis of all
the evidence of record and any new
evidence or argument submitted since
the last adjudication. If the action
taken remains adverse to the appellant
in any way, and provided the
provisions of the VCAA have been
fulfilled, the appellant and his
representative should be furnished an
appropriate supplemental statement of
the case (SSOC).
Thereafter, the case should be returned to the Board for
further appellate consideration, if in order. The appellant
has the right to submit additional evidence and argument on
the matter or matters the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).